Joint Opinion 14-133/14-134

September 4, 2014

Digest:         A candidate for Supreme Court who is under consideration for a major political party’s nomination may contribute proportionally to the cost of a pre-primary mailing asking minor party voters to vote for a slate of minor party judicial nominating convention delegates who have pledged to support the candidate if he/she ultimately earns a place on the major party’s ballot line, provided that the mailing makes clear that the judicial candidate’s endorsement is being made solely for the purpose of furthering the judicial candidate’s own candidacy and is otherwise consistent with applicable limitations on judicial speech.

Rules:          22 NYCRR 100.5(A)(1)(c); 100.5(A)(1)(c)-(d); 100.5(A)(2); 100.5(A)(4)(c); Opinion 08-157; Joint Opinion 10-101/11-01.

Opinion:

         The inquirers are candidates for election to Supreme Court within their window periods who seek the endorsement of a major political party.¹ According to the inquirers, the chair of the party has asked all candidates seeking the party’s nomination for Supreme Court to pay a proportionate share of the costs to send literature to voters in a minor political party before the primary.² The pre-primary mailing would ask minor party voters to vote in their party’s primary for a specific slate of delegates to the minor party’s judicial nominating convention.

         The apparent rationale for this expenditure is that this specific slate of minor party judicial delegates is pledged to support the same Supreme Court candidates as the major party (i.e., whichever Supreme Court candidates ultimately receive the major party’s nomination to appear on the general election ballot). Thus, as the Committee understands it, although these minor party judicial delegate candidates are not specifically and unconditionally pledged to support either of the inquiring candidates (or any other named candidate) at this time, these delegates are, in effect, pledged to support them conditionally. That is, they will support a particular inquiring Supreme Court candidate if (and only if) that candidate is among those who receive the major party’s nomination at the major party’s own upcoming judicial nominating convention. The Committee understands that the identity of those who will actually receive the major party’s nomination for Supreme Court at the judicial nominating convention is currently unknown, but the inquiring candidates have been advised that they are under consideration.

         A candidate for elective judicial office, including a judge, may personally participate in his/her own campaign for judicial office during his/her window period, subject to certain limitations (see 22 NYCRR 100.5[A][1][c]; 100.5[A][2]). However, a candidate for judicial office may not otherwise engage in any partisan political activity or participate in any political campaign for any office (see 22 NYCRR 100.5[A][1][c]-[d]).

         The Committee has advised that it is permissible for a Supreme Court candidate, who will be nominated at a judicial nominating convention, to ask primary election voters to vote for a judicial convention delegate who will support the candidate’s nomination (see Opinion 08-157). Noting that where the only means for the judicial candidate to secure his/her party’s nomination was for the party’s registered members to first elect a delegate who would vote to nominate the candidate at the party’s subsequent convention, the Committee concluded that asking primary voters to select a particular convention delegate was permissible because it was essentially “conduct ... related to his/her own campaign for elective judicial office” (Opinion 08-157; see also 22 NYCRR 100.5[A][1][c]). Where a Supreme Court candidate knows that “one [convention] delegate candidate supports the judge while another does not,” the judicial candidate may ask voters to vote in a primary election “for the judicial convention delegate who will support his/her nomination,” provided that he/she “make[s] clear that his/her endorsement of the delegate is for the purpose of furthering his/her own candidacy” (Opinion 08-157).

          In Joint Opinion 10-101/11-01, the Committee elaborated on the extent to which Supreme Court candidates may assist in the primary election campaigns of persons seeking to become judicial convention delegates whose election would be necessary to secure the judicial candidate’s subsequent nomination at the convention. First, the Committee clarified that “although Opinion 08-157 refers to a single ‘delegate,’ a candidate for Supreme Court who seeks a political party’s nomination may take the actions permitted in Opinion 08-157 with respect to any or all of the delegates who will vote to nominate him/her at the party convention...” (Joint Opinion 10-101/11-01).

         Second, and of particular significance for the present inquiry, with respect to paying for mailings in support of a slate of judicial delegate candidates, the Committee advised:

a candidate for Supreme Court may use his/her own campaign funds to pay for campaign advertisements or mailings in which the judicial candidate will “ask voters to vote in a primary election for the judicial convention delegate[s] who will support his/her nomination, but must make clear that his/her endorsement of the delegate[s] is for the purpose of furthering his/her own candidacy [citation omitted].” That is, the advertisements will clearly be understood as the judicial candidate’s advertisements.

By contrast, a Supreme Court candidate may not simply pay for the delegate candidates’ advertisements, for two interconnected reasons. First, a judicial candidate may not make financial contributions to other candidates’ campaigns [citation omitted]. Thus, if a Supreme Court candidate is paying for an advertisement, that advertisement must directly support his/her own campaign [citation omitted].

Joint Opinion 10-101/11-01.³

         The Committee believes that the additional circumstances described in the present inquiries – where the minor party judicial convention delegates would only support the inquiring candidates for Supreme Court on a conditional basis (i.e., if they were among the major party judicial candidates to receive their own party’s nomination) – would not unreasonably extend the principles of Opinion 08-157 and Joint Opinion 10-101/11-01.

         Accordingly, the Committee concludes that, under the circumstances presented, it is permissible for a candidate seeking a major party’s nomination for Supreme Court to contribute proportionally to the cost of the party’s pre-primary mailing to minor party voters, seeking their support for a slate of minor party judicial convention delegates who are pledged to support the as-of-yet undetermined judicial candidates who will appear on the major party’s ballot line (among whom the inquiring judicial candidates reasonably hope to be). The expense of such a mailing thus appears to be related to the inquirers’ own campaigns, under the circumstances presented. The Committee cautions, however, that the inquirers must carefully review the party’s proposed mailer before it is sent, to ensure that the wording of the mailer is consistent with all applicable judicial speech limitations, including those set forth in Joint Opinion 10-101/11-01 and Opinion 08-157. Of particular note, they must insist that the mailer include a statement making clear that their endorsement of the delegates is for the purpose of furthering their own candidacies. For this purpose, the inquirers may, if they wish, consent to a generic statement such as “This mailer has been paid for by candidates for Supreme Court, for the purpose of furthering their own candidacies.”

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     ¹ At this time, there are two major political parties in New York.

     ² At this time, six of the minor political parties have achieved automatic ballot access in New York based on the results of the 2014 gubernatorial elections.

     ³ The Committee also advised that the Supreme Court candidate must not pay for a delegate’s advertisements because it would be “difficult, if not impossible” for him/her to ensure that the delegate candidate’s advertisements complied with stringent judicial ethics standards, thereby leaving the judicial candidate “vulnerable to a public perception that he/she is using campaign funds to make statements through others that he/she would not be permitted to make directly” (Joint Opinion 10-101/11-01, citing 22 NYCRR 100.5[A][4][c]). Here, by contrast, there is only one contemplated mailing at issue, prepared by a political party for the narrow purpose of encouraging another party’s voters (in effect) to follow its lead in nominating the identical slate of Supreme Court candidates, by electing the judicial delegates who have committed to do that. Under the circumstances, it is feasible for the inquiring candidates to review the one mailing at issue before it is distributed.